In a Florida car accident case, an injured person can be owed damages from multiple parties for a variety of reasons. One example is a chain reaction car accident, in which all of the acts of negligence happen almost simultaneously. A passenger could file suit for the negligent acts of the driver of her car and the drivers of other vehicles involved. Another example may be a construction accident in which an injured party is injured in one accident, but the cause of the accident stems from the negligent acts of other subcontractors preceding the accident. The injured person may seek recovery from his own employer under workers’ compensation and file personal injury lawsuits against the contracting companies.

A recently issued decision (Case No. 2D16-4642) looks at the due process surrounding an underinsured (UM) automobile accident with three separate claims of relief. Precise cuttingThe injured plaintiff suffered serious injuries after an intoxicated driver hit the car in which she was a passenger. The injured person filed suit, asking for 1) damages for the impaired driver’s negligence, 2) UM coverage from her own auto insurer, and 3) punitive damages from the impaired driver for his wanton conduct. The insurer moved to remove itself from the claims against the intoxicated driver, citing section 627.4136(1), Florida Statutes (2014). This statute dictates the non-joinder of insurers. The specific subsection states that a cause of action against a liability insurer by a person not insured under the policy must first obtain a settlement against the person insured under the policy before pursuing any cause of action against the insurer.

The insurer also claimed it was entitled to a separate trial from the driver under the rule of civil procedure FRCP 1.270(b) to avoid prejudice. The insurer claimed it was worried the jury would unfairly increase the verdict amount after hearing of the intoxicated driver’s behavior and the fact that the injured person was insured. The trial court agreed with all of the insurer’s arguments for severance and granted its motion.

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In a personal injury lawsuit, the injured person must do more than show the defendant caused an injury. The injured person must also provide details of the damages incurred as a result of the injury. Some may be straightforward, like the bill for services from the Emergency Room visited after the accident. Others require more analysis and calculation. A recent Fifth District Court of Appeal decision (5D15-4423) discusses such damages, and the appellate Foggy tropicscourt reviewed whether or not the court erred by not allowing a new trial after a Florida car accident.

At trial, the injured party was awarded $2.13 million in damages for the permanent injuries he sustained from the auto collision. The defendant driver appealed, arguing the trial court should have granted a new trial based on the improper closing arguments. The driver also sought to limit the jury award for pain and suffering and future medical expenses. All of these motions were denied by the lower court and affirmed on appeal. The appellate court did grant a new trial for the defendant’s motion for remittitur related to the lost earning capacity and collateral source payments.

On this subject, the injured person provided testimony at trial that he worked as a plumber with an hourly wage between $18 and $19.50. He stated his job had evolved into a less physically demanding role in which he only performed minor plumbing duties, but his pay remained the same. The injured person testified that his goal was to continue working as a plumber until age 65 unless he was laid off or moved to another job. On cross examination, the injured man acknowledged he went back to full-time work performing all plumbing duties, even though he was still receiving chiropractic care.

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In the early phases of litigation, parties may move for summary judgment, arguing that the case should not move forward due to some legal preclusion specific to the type of injury. A common argument made by defendants in South Florida car accident cases is that there is no genuine issue of material fact for the jury to consider, so dismissal is the only route acceptable under the law. A trial court has substantial discretion to dismiss an action, but it is not allowed to dismiss based on the weight of the evidence for either party. If there is any factual question of whether or not a defendant or defendants could be found liable, that question must be answered by a jury.

A recent case addresses a summary judgment entered in favor of a defendant golf club that served drinks to a drunk driver who crashed into the decedent, causing her death. The decedent’s representative filed suit against the driver and the golf course that sold alcohol to the driver prior to the accident under Florida’s reverse dram shop liability statute, section 768.125, Florida Statutes (2014).Sand Trap At the time of the accident, the driver had a blood alcohol content of .302.

In its defense, the club asserted it was not liable under the dram shop statute since they did not know the club member was habitually addicted to alcohol. The club stated there was no competent evidence on record that the driver was habitually addicted, nor was there evidence the club had knowledge of her alleged addiction. In response, the representative filed depositions of the driver, a friend of the driver, and relevant employees of the club. The depositions revealed the driver played 70-80 times over a three-year period prior to the crash. The friend testified that she was intoxicated nearly every time they played together at this club. The driver often started with two strong whiskey cocktails, poured by staff of the club. The driver would then return to the clubhouse at the midpoint turn of the course for a third whiskey cocktail, all while purchasing and drinking additional alcoholic beverages from the “cart girl” employee of the club. The friend testified that on the day of the accident, the “cart girl” poured and served eight ounces of pure alcohol to the driver. The estate also submitted an affidavit from a laboratory director at the County’s medical examiner’s department. The affidavit estimated the driver’s blood alcohol content when she left the club to be .27. Despite this proof, summary judgment was granted to the club. The estate appealed.

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If an accident occurs in Florida, an injured party can pursue legal recourse in this state. In a recent case, the appellate court looked at a prior judgment that attempted to address whether a party injured in a Florida car accident could access Personal Injury Protection benefits under her policy obtained in Michigan after she reached a settlement agreement under a Michigan rule of civil procedure. Beach RoadIn this original agreement, the parties stipulated to an entry of a judgment for the injured party for $30,000. Later, the injured party brought a second action in Florida against the insurer for additional PIP benefits from the same policy, based on the medical expenses incurred prior to the filing of the lawsuit.

The insurer moved for a summary judgment, arguing this claim for PIP should not proceed under res judicata, which bars matters that have already been adjudicated by a competent court. The injured woman countered that res judicata did not apply to the PIP benefits, since the entered judgment was for the expenses incurred after the complaint was filed three years before. The trial court determined that the parties had not reached a “meeting of the minds” when the first claim was resolved and vacated the stipulated judgment. The court cited Fla. R. Civ. P. 1.540(b)(1), (2), (4), which allows a trial court to relieve a party from a judgment when the order or judgment is void; when a mistake, inadvertence, or excusable neglect requires relief; or when there’s been the discovery of important evidence. The trial court did not specify which part of the rule it was applying to the situation at hand. The insurer appealed.

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Anyone who suffers a severe accident in Florida needs a tremendous amount of funds to cover the cost of living with expensive and on-going medical care. The circumstances around an accident dictate the number of avenues of relief available to the plaintiff. If there is more than one party responsible for the injuries, liability and damages can be divided among the parties – including the injured party. Determining who pays which amount can extend beyond assigning percentages. Sometimes injuries are compounded by another party in a separate, subsequent incident.

Old scooterThis is seen in a recent Florida Supreme Court case, which asks whether the defendants could seek the difference in damages from another allegedly responsible party after they were held liable at trial. The injured party suffered serious head trauma after an automobile collided with his scooter. His guardian alleged that in addition to the injury caused by the negligent driver, he suffered medical negligence by the care providers he saw immediately after the accident. The guardian first tried the allegations against the driver and her father and successfully blocked the jury from considering whether the medical negligence was a contributing cause to the injuries. The father and daughter were found liable for the injuries, and a judgment was entered for a little over $11 million.

The defendant driver was using an insured vehicle owned by her father. After the judgment was entered, the policy limit of $1.1 million was paid by the insurer, but the remaining $10 million was left unpaid by the father and daughter. The guardian then filed a separate medical malpractice action against the medical provider defendants for the same injuries. The father and daughter were allowed to intervene, and both the injured person and the family defendants sought equitable subrogation, or payment and liability in the place of the other defendants, from the medical providers. The medical providers sought dismissal of the lawsuits, arguing neither the insurer nor the father and daughter were entitled to subrogation, since they did not pay the damages in full.

A Florida appellate court recently assessed an appeal stemming from an accident and negligent care that caused significant, fatal injuries. In a recent case, the personal representative of the injured person’s estate filed suit against several defendants, alleging the decedent was first injured by a malfunctioning sliding door at a drugstore, which led to her receiving inadequate care at a senior home, ultimately resulting in her death. The decedent suffered significant injuries from the fall at the drug store’s premises that were then aggravated by a second fall at the senior center. The representative initially filed two separate actions against the drugstore and the senior center but eventually moved to consolidate the two actions under Florida Rule of Civil Procedure 1.270(a).

In his motion, the representative alleged the wrongful death claim was based on successive injury-producing incidents, and both the drug store and the center contributed to the woman’s death.Book Stack The representative argued there was a substantial risk of inconsistent verdicts because one defendant could place the blame on the other defendant in each case. The representative asserted this could collectively minimize the defendants’ liability and the jury’s award of damages.

The Second District Court of Appeal looked at previous state decisions to determine whether the trial court erred when it denied the motion to consolidate. The Florida Supreme Court previously determined two separate actions involving two automobile accidents should have been consolidated because the damages could not be readily divided among the defendants in each action. (See Lawrence v. Hethcox, 283 So. 2d 41 (Fla. 1973).) The court ruled that separate actions would have increased the injured person’s challenges in proving how much each defendant was responsible. The court felt a denial of consolidation would obstruct rather than promote justice. Other district court verdicts reflect this reasoning in U-Haul Co. of Northern Florida, Inc. v. White and Hickey v. Pompano K of C Inc. Hickey had similar facts to the case at hand, in which a plaintiff suffered two separate slip-and-falls three weeks apart. The plaintiff in Hickey injured her knee, which was alleged to have contributed to the second fall that then exacerbated the first injury. The Fourth District pointed out that the defendant in each action could place the blame on the other defendant, which would result in a low verdict in one or both trials. Low verdicts are not grounds for a new trial, and the plaintiff would be blocked from an adequate remedy by appeal.

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If you’ve been injured while physically in the state of Florida, you generally have a right to seek damages from the negligent tortfeasor under Florida’s civil court system. You do not have to be a resident of Florida to file suit against another Florida resident or business entity with relevant connections to Florida. As with all things, there are exceptions. Even when an accident has ties to Florida through location or through business contacts, the legal avenue of relief through Florida’s court system may be unavailable to the injured person.

A Third District Court of Appeal case (No. 3D16-556) addresses the legal issues in an example of this scenario. A cabin steward on a cruise ship alleged severe injuries due to the constant heavy lifting, twisting, turning, and bending he had to perform as a cabin steward. docked shipThe steward claimed the ship owners were negligent, provided an unseaworthy ship on which to work, failed to provide living subsidies and medical expenses (also known as maintenance and cure in maritime matters), and failed to provide treatment for his injuries.

The company running the cruise line is based in Spain and required all employees to sign an employment agreement with the ship management company, which was based in the Bahamas. The agreement in this lawsuit covered the term of employment, the salary, and jurisdiction over disputes. The section of an employment agreement that covers jurisdiction is known as the forum selection clause. By signing the employment contract, the employee agrees to resolve disputes with the employer in the jurisdiction chosen by the employer. The ship in this case was owned by a Maltese company, and the forum selection clause specified that all disputes must be settled in Malta. The defendant company moved to dismiss the steward’s complaint in Florida, arguing the forum selection clause precluded personal injury actions outside Malta. The steward countered that the clause was unreasonable because the location was inconvenient and expensive for him to litigate. The trial court granted the company’s motion to dismiss, finding the forum selection clause was reasonable under the circumstances because the ship was based in Malta, the owner was incorporated in Malta, and the country of Malta has an interest in regulating its ships and shipowners as well as enforcing seamen’s rights.

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The Second District Court of Appeal recently issued a decision (2D16-353) regarding a highway accident on I-75, when the driver of a large service truck collided with a non-commercial truck. A mattress had fallen onto the highway, but the accounts of what happened afterward differed greatly between those involved. The driver of the truck testified that he saw the driver of the commercial truck behind him and that he was driving too fast. He said he swerved left onto a narrow shoulder when it looked like the driver was going to rear-end him. HighwaySince the left shoulder could not accommodate all of his car, he remained partially in the left lane of the interstate. The driver said the commercial driver forcefully struck him, causing him to roll over. The driver alleged in his negligence action that he and his passenger suffered significant injuries.

In contrast, the commercial truck driver testified that the accident was caused by the other driver when he suddenly swerved into the right lane and then the left lane and shoulder – directly across his path of travel. The commercial driver claimed the mattress was 100 yards away when the traffic in front of him was slowing and stopping. He stated he also slowed down quickly and attempted to avoid hitting the truck in front of him, but he was unable to avoid it because the car was not completely in the shoulder.

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Personal injury lawsuits are all uniquely complex. Medical malpractice actions in particular have additional statutory requirements that add to the general challenges of a civil suit. The Florida legislature enacted Chapter 766 to create a pre-suit procedure for all medical malpractice actions. This process requires a claimant to conduct an investigation to see if there are reasonable grounds for a medical negligence lawsuit. The injured party must provide this corroboration of reasonable grounds with a verified medical expert opinion from a person who regularly practices medicine and meets the requirements set forth in subsection (5).Hand and wrist If the defendant in the case is in a specialty, the expert must also practice in the same specialty.

A recently issued decision from the Second District Court of Appeal (2D16-4052) addresses the qualifications of a pre-suit expert. The plaintiff sought treatment from an orthopedist after breaking her toe. The defendant physician provided different types of care, including surgery. The problems with her toe remained, and the woman sought a second opinion. The second physician advised that the surgery performed was unnecessary for injuries like hers, and the injured woman filed suit against the institute where the first physician practiced. As part of her claim, the woman offered the required “corroboration of reasonable grounds to initiate medical negligence litigation,” accompanied by an affidavit of a board-certified podiatrist. The institute objected to the affidavit, claiming he was not qualified to testify as an expert because he was a podiatrist rather than an orthopedic surgeon. The injured woman did not respond to this objection.

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The civil judicial system is designed to help make injured parties whole by holding negligent parties accountable and providing compensation for expenses already incurred and certain expenses expected in the future. Damages for injuries may also include recognized setbacks that are harder to quantify like pain and suffering or loss of consortium. These damages are known as “noneconomic damages.” Florida Statutes sections 766.118(2) caps noneconomic damages in medical negligence cases at $500,000 per claimant. The damages can possibly increase to $1 million if the negligence resulted in a permanent vegetative state or caused a catastrophic injury. Subsection (3) has similar caps for negligence by non-practitioners at $750,000 and $1.5 million, respectively. Medical tubesThe Supreme Court recently issued a decision (No. SC15-1858) finding these statutes violate the Equal Protection Clause of Florida’s Constitution under Art. I, Section 2.

The plaintiff in the case originally suffered from carpal tunnel. She had surgery to address the problem but suffered from complications leading to additional and severe injuries. The injured patient’s esophagus was perforated when the medical team performed intubation as part of her anesthesia. The injured patient woke up with incredible pain in her back and chest. The anesthesiologist was notified. He examined her and then wrote a prescription for her chest pain. The doctor concluded that there was no issue with her heart, and the patient was discharged that afternoon. On the next day, the injured patient’s neighbor went to check on her and found her unresponsive. The patient went to the hospital and underwent emergency surgery to repair her esophagus and save her life. After several weeks in a drug-induced coma, the patient awoke and began intensive therapy to relearn how to eat and regain mobility. The injured patient has expressed that she continues to suffer pain in the upper half of her body in addition to neurological disorders from the trauma.

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